Master terms

Version: 11 October 2023

Unless otherwise defined or the context otherwise requires, capitalized terms used in the Agreement shall have the following meaning:

“Add-on Order” means any Add-on Order Form agreed and entered into between the Parties.

“Affiliate” means any legal entity that a Party owns, that owns a Party, or that is under common ownership with a Party. “Ownership” means, for purposes of this definition, control of more than a 50 % interest in an entity.

“Agreement” means an Order Form, the Data Processing Agreement, these Master Terms as well as any applicable Statement of Work, collectively.

“Business Day” means any day, Monday through Friday, that is not a public bank holiday in Denmark.

“Charges” means the fees, charges and costs payable by Customer under the Agreement for the Deliverables.

“Customer Data” means any data, including personal data, which Customer provides to TravelOperations through its use of the TravelOperations Software, as well as any modification thereof and new data generated by Customer through its use of the TravelOperations Software.

“Confidential Information” shall have the meaning as ascribed in Clause 15.2.

“Deliverables” means all TravelOperations Software (including updates and new versions), Third-Party Software, Documentation, Services, code, or other development work provided by TravelOperations under the Agreement.

“Documentation” means the functional and technical specifications of the TravelOperations Software set out in: https://docs.traveloperations.com/.

“Effective Date” means the date the Agreement enters into force. Unless otherwise set out in the Order Form, the Effective Date is the date the agreement is signed or otherwise entered into.

“End Users” means the named physical persons employed at Customer or its Affiliates that has been designated with a right to use the TravelOperations Software or the Third-Party Software in accordance the Agreement or the terms applicable to Third-Party Software.

“Initial Term” has the meaning as ascribed in Clause 13.1.2.

“Master Terms” means these master terms governing TravelOperations’ delivery of TravelOperations Software and Services to Customer.

“Microsoft” means the applicable Microsoft legal entity with whom Customer has contracted or is contracting.

“Microsoft Subscription Terms” means any agreement between Microsoft and Customer, including additional online service terms and license terms published on Microsoft’s licensing site as amended from time to time which applies to Customer’s use of Microsoft software. The Microsoft Subscription Terms are available at the following web page: https://www.microsoft.com/licensing/docs/customeragreement

“Monthly Payment Plan” means the subscription model for the TravelOperations Software which offers Customer maximum flexibility as Customer may increase or decrease End Users on a monthly basis, as further specified in these Master Terms.

“Order Form” means the written order form signed by the Parties setting out the details of the Deliverables to be provided by TravelOperations to Customer as well as commercial terms, special conditions, etc.

“Renewal Term” has the meaning as ascribed in Clause 13.1.1.

“Self-Service Portal” means the portal that Customer gains access to as set out in Clause 5.2.2.

“Services” means the consulting, development, installation, implementation, maintenance, training, support and/or other tasks performed by TravelOperations.

“Statement of Works” or “SOW” means a separate document forming a part of the Agreement setting out the Services or other Deliverables to be delivered by TravelOperations, as well as the terms and conditions specific for such Services or other Deliverables.

“Subcontractor” means any third party (including Affiliates of TravelOperations) to whom TravelOperations has delegated tasks, activities and/or responsibilities constituting a part of the Services (including any entity to whom a Subcontractor further subcontracts or otherwise sub-delegates any of its subcontracted duties or obligations). A Third-Party Software vendor is not considered a Subcontractor under this Agreement.

“Subscription Commencement Date” means the subscription commencement date set out in the Order Form.

“Test Issue” means a material non-conformity with the acceptance criteria (a set of test scripts set out in a SOW defining the expected results of the Deliverables) which has been identified by Customer during a UAT, unless such non-conformity is due to Customer’s hardware, Third-Party Software, defective data provided by Customer, or other circumstances for which TravelOperations cannot be held responsible.

“TravelOperations Software” means the proprietary software provided and exclusively owned by TravelOperations. The TravelOperations Software includes data files, testing and examination materials, as well as other materials like analyses, designs, Documentation, instructions, reports and offers, including preparatory materials in this regard, developed or made available to Customer.

“Third-Party Software” means any software (including any Microsoft products) delivered under this Agreement which is not the TravelOperations Software.

“User Acceptance Testing” or “UAT” means the test undertaken by Customer of the Deliverables provided by TravelOperations as set out in Section 4.3.

“Yearly Payment Plan” means the default subscription model for the TravelOperations Software where Customer commits to a minimum number of End Users during the Initial Term (of one or several years), as further specified in these Master Terms.

1. Scope of the master terms

1.1        The purpose of these Master Terms is to set out the general terms and conditions of the Agreement under which the TravelOperations Software and Services as well as any Third-Party Software delivered by TravelOperations is delivered.

2. TravelOperations software

2.2.1            In consideration of the Charges, TravelOperations grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide right to access and use the TravelOperations Software from the Subscription Commencement Date and until Customer’s subscription or the Agreement is terminated.

2.2.2          The license granted under Clause 2.2.1 above is for Customer’s internal use only. However, the license shall extend to Customer’s Affiliates as well, provided that:

• Customer shall be TravelOperations’ sole contracting party;
• Customer shall be responsible and liable towards TravelOperations for its Affiliates’ compliance with the terms of the Agreement; and
• Such Affiliates are covered by the “permitted affiliates” provisions set out in the applicable Microsoft Subscription Terms.

2.2.3          Customer shall not:

• sell, resell, distribute, rent or lease the TravelOperations Software unless permitted under the Agreement;
• use the TravelOperations Software to store or transmit infringing, libellous or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy rights;
• interfere with or disrupt the integrity or performance of the TravelOperations Software or data contained therein; and
• reverse engineer or decompile the TravelOperations Software unless permitted by applicable law.

2.2.4          The TravelOperations Software may only be accessed and used by End Users in the quantities designated in its subscription under the Microsoft Subscription Terms, as set out in Section 7.1. Customer is responsible for granting End Users access to the TravelOperations Software and is responsible for their use of the TravelOperations Software by using the administration tools in Customer’s Microsoft 365 online environment.

2.2.5          TravelOperations may implement technical measures to protect the TravelOperations Software. Customer shall not remove or bypass such technical measures or have such technical measures removed or bypassed.

3.              Microsoft subscriptions

3.1        The TravelOperations Software is deployed in Customer’s Microsoft Azure tenant, and Customer must have an active Microsoft Azure subscription to which TravelOperations is granted administrative rights before TravelOperations can perform the Deliverables. However, TravelOperations will not perform any deployments, installations, or updates in Customer’s Microsoft Azure tenant without Customer’s prior consent.

3.2        The TravelOperations Software shall be used as part of Customer’s Microsoft 365 environment (in combination with Microsoft Dynamics), and Customer shall designate TravelOperations as being its DPOR (Digital Partner of Record) in its relevant Microsoft’s systems. It is a pre-requisite of the availability of the TravelOperations Software that the Microsoft 365 environment and Microsoft Dynamics is available for Customer’s use.

3.3        Microsoft subscriptions can be procured through TravelOperations either as a bundled solution or a non-bundled solution. Customer may in some cases procure Microsoft subscriptions itself from Microsoft directly. The model chosen is set out in the Order Form.

3.4        All Microsoft subscriptions procured by Customer through TravelOperations are set out in the Order Form. The Microsoft subscriptions shall follow the TravelOperations Yearly or Monthly Payment Plan.

3.5        All Microsoft products and services will be governed by the Microsoft Subscription Terms entered into between Customer and Microsoft. TravelOperations shall have no liability for the solutions and services provided by Microsoft unless the default in the Microsoft services is due to circumstances for which TravelOperations is responsible.

4.              Services

4.1        TravelOperations’ obligations

4.1.1       TravelOperations shall provide the Services set out in the Statements of Works (“SOW”). During the term of the Agreement, the Parties may agree to enter into additional Statement of Works based on TravelOperations’ SOW template

4.1.2      TravelOperations shall assign an adequate number of personnel to perform the Services. Personnel appointed by TravelOperations shall be experienced, qualified and familiar with the TravelOperations software to perform the Services.

4.1.3       TravelOperations must (and has the sole right to) supervise, manage, direct, and perform all work to be performed by its personnel under the Agreement when providing Services, unless otherwise stated in the applicable SOW.

4.1.4       Upon reasonable request from Customer, TravelOperations shall replace any personnel appointed for the provision of the Services, provided that Customer has notified TravelOperations of the circumstances that give rise to replacement without undue delay. In such case, TravelOperations shall use its best efforts to appoint a replacement within 30 days.

4.2       Customer’s obligations

4.2.1       As further specified in the applicable SOW(s), Customer shall assist TravelOperations in the performance of the Services as reasonably expected or requested by TravelOperations. Customer shall also procure all necessary rights and consents from third-party suppliers of Customer in order for TravelOperations to perform the Services.

4.2.2       A failure by Customer to assist Travel Operations in the performance of the Services shall not constitute a breach of the Agreement or the applicable SOW but shall be deemed to excuse TravelOperations from failure to perform (in Danish: fordringshavermora), provided that the non-performance by Customer results in TravelOperations being unable to perform in accordance with the Agreement. Further, TravelOperations shall be entitled to compensation for any documented costs arising out of Customer’s failure to assist.

4.3       Testing and acceptance of Deliverables

4.3.1      If agreed in a SOW, the Deliverables shall be subject to User Acceptance Test (“UAT”). The acceptance criteria (a set of test scripts defining the expected results of the Deliverables) shall be agreed and set out in the applicable SOW. If no UAT is agreed, the Deliverables will be deemed accepted once they are made available to Customer.

4.3.2      Before releasing a Deliverable to Customer for an UAT, TravelOperations will, to the extent possible, carry out internal tests in order to verify whether the Deliverable is ready for the UAT by Customer. When such tests are completed and any identified issues have been resolved, TravelOperations will notify Customer that the Deliverable is ready for the UAT.

4.3.3      The UAT shall be undertaken by Customer and, if set out in the SOW, with the assistance of TravelOperations. It is Customer’s responsibility to ensure that a test log is established and maintained and that all Test Issues are logged with sufficient details to allow for the Test Issues to be replicated and resolved by TravelOperations.

have been resolved, TravelOperations will notify Customer that the Deliverable is ready for the UAT.

4.3.4      An UAT is completed and the Deliverable in question shall be deemed accepted by Customer:

• when Customer notifies TravelOperations that the Deliverable satisfy the acceptance criteria; or
• if Customer does not provide abovementioned certificate and no Test Issues have been reported to TravelOperations, five (5) Business Days after the UAT has been completed.

4.3.5      Customer shall not use a Deliverable in a live production environment before an agreed UAT is completed and the Deliverables are accepted by Customer. If Customer uses a Deliverable in a live environment before it is accepted (as set out in Clause 4.3.3 above), the Deliverable shall be deemed accepted by Customer (as is) on the date Customer started using it. Further, Customer shall reimburse TravelOperations for any increased costs incurred by TravelOperations due to Customer’s premature use of the Deliverable (for ex-ample, increased support or maintenance costs).

4.3.6      By accepting the Deliverable as set out in Clause 4.3.3 or Clause 4.3.4, Customer confirms that the Deliverable meets the requirements set out in the applicable SOW (irrespective of whether a UAT was completed), and Customer may not:

• reject the Deliverable;
• receive any reductions of payments in respect of defects or shortcomings in the Deliverable which are subsequently discovered by Customer; or
• invoke any other right or remedy in respect of the relevant Deliverable.

4.4      Cancellation or rescheduling of Services

4.4.1      Provided that Customer pays for any documented travel expenses incurred by TravelOperations due to rescheduling of travel arrangements, Customer may cancel or reschedule the Services to be performed under a SOW:

• with ten (10) Business Days’ notice prior to the scheduled commencement date for Services with a value not exceeding EUR 25,000;
• with twenty (20) Business Days’ notice prior to the scheduled commencement date for Services exceeding EUR 25,000.

4.4.2      If Customer cancels or reschedules Services later than the notice periods above, TravelOperations shall use its commercially reasonable efforts to reallocate its resources to other projects or Services, and Customer shall not pay for such resources to the extent they are successfully reallocated.

5. Changes

5.1       Changes to the TravelOperations Software

5.1.1      TravelOperations may provide new or modified versions of the TravelOperations Software for Customer to install, provided that such new or modified versions retain the core functionality of the TravelOperations Software. TravelOperations releases new versions and updates of the TravelOperations Software, which shall be made available for Customer upon request, in accordance with its software lifecycle (typically four (4) times a year). Customer shall be responsible for the deployment of new versions or updates un-less the Parties have entered into a SOW for One Version Maintenance.

5.1.2      The TravelOperations Software shall be considered standard software with the benefits and limitations this implies. The TravelOperations Software will be configured to Customer’s needs to the extent set out in a SOW and to the extent the TravelOperations Software supports such configuration. Customer may propose changes to the TravelOperations Software, including development of new functionality. However, any changes to or further development of the TravelOperations Software shall be at TravelOperations’ sole discretion. If the changes or further development proposed by Customer is accepted by TravelOperations, it shall be agreed by executing a SOW between TravelOperations and Customer, and once completed, the changes or further development shall be considered an inherent part of the TravelOperations Software (as standard software released to all TravelOperations’ customers).

5.1.3            If changes to the TravelOperations Software, to TravelOperations’ reasonable knowledge, results in a change in Customer’s current procedures, TravelOperations will inform Customer about the matter as soon as possible, and if possible, within a reasonable time prior to the changes to the TravelOperations Software are scheduled to be implemented, unless the change is a consequence of changes to Third-Party Software.

5.2           New Deliveries and changes in quantities

5.2.1            Customer may purchase additional Services or subscribe to additional volumes of the TravelOperations Software and/or Third-Party Software by entering into an updated Order Form or an Add-on Order with TravelOperations based on its Order Form or Add-on Order templates.

5.2.2           Customer will also be granted access to TravelOperations’ self-service portal through which Customer may, subject to the terms of the Agreement, acquire new and/or change the quantities of TravelOperations Software and Microsoft products. All executed purchases using the Self-Service Portal are binding to the Customer, including any increase in license quantity. Customer shall solely be responsible for its purchase of Deliveries made through the Self-Service Portal, and TravelOperations disclaim any and all liability for any of Customer’s wrongful purchases.

5.2.3            Customer may increase the quantity of End Users at any time during the Initial Term or a Renewal Term. Additional orders for TravelOperations Software or Services will be invoiced in accordance with TravelOperations’ then-current pricelist and shall be subject to the terms and conditions of this Agreement, unless otherwise specifically agreed.

5.2.4            A reduction in the quantity of TravelOperations Software and Third-Party Software subscribed to under this Agreement shall be considered a partial termination for convenience and will take effect in accordance with the termination notices set out in Clause 13.1.

5.3            Changes to Statement of Works

5.3.1            Changes to a SOW shall be mutually agreed in writing, and the changes agreed shall be reflected in the applicable SOW.

5.4           Add-on Orders

5.4.1            The Parties may enter into Add-on Orders for additional Deliveries. Unless otherwise specified in an Add-on Order, the Add-on Order shall be governed by these Master Terms and the terms set out in the Order Form. The Add-on Order shall be considered an amendment to the terms of the Agreement, including the Order Form.

6.             Use of subcontractors

6.1            The Parties may enter into Add-on Orders for additional Deliveries. Unless otherwise specified in an Add-on Order, the Add-on Order shall be governed by these Master Terms and the terms set out in the Order Form. The Add-on Order shall be considered an amendment to the terms of the Agreement, including the Order Form.

7.             Charges and invoicing

7.1           Subscription fees for the TravelOperations Software

7.1.1            The subscription fee for the TravelOperations Software is calculated based on the number of End Users designated by the Customer under its Microsoft Subscription Terms and the chosen Microsoft subscription plan. For example, if Customer has subscribed to 25 End Users in the Microsoft Subscription Terms under the Monthly Payment Plan, a subscription fee is also payable to TravelOperations equal to 25 End Users of the TravelOperations Software under the Monthly Payment Plan, irrespective of whether such End User has used or has been granted a right of use to TravelOperations Software.

7.2           Microsoft subscriptions

7.2.1            For Microsoft subscriptions ordered under the Yearly Payment Plan, the price for the Initial Term or a Renewal Term is calculated based on the number of End Users designated by the Customer under its Microsoft Subscription Terms throughout the term. As TravelOperations is obliged to pay Microsoft at the time of ordering the Microsoft subscriptions under the Yearly Payment Plan, TravelOperations will not order such Microsoft subscriptions before payment is received by TravelOperations.

7.2.2            For Microsoft subscriptions ordered under the Monthly Payment Plan, the monthly price is calculated on the basis of the highest number of End Users designated by Customer in its Microsoft Subscription Terms during a month. Microsoft subscriptions under the Monthly Payment Plan will be invoiced to Customer monthly in arrears as of the Effective Date.

7.3           Invoicing and payment terms

7.3.1            Under the Yearly Payment Plan, subscription fees for the Initial Term for the TravelOperations Software as well as Microsoft subscriptions will be invoiced as of the Effective Date or, in case of Renewal Terms, not earlier than 30 days before the Effective Date the following year(s).

7.3.2            Under the Monthly Payment Plan, subscriptions for the TravelOperations Software as well as Microsoft Subscriptions will be invoiced monthly in arrears as of the Effective Date.

7.3.3            Unless otherwise agreed, other Third-Party Software (such as add-ins) will be invoiced following the Yearly Payment Plan.

7.3.4            The amounts invoiced by TravelOperations and payable by Customer is set out in the Order Form and/or any SOW executed between the Parties, with the exception of the following amounts (which are payable by Customer as well):

• any Deliverables ordered through the Self-Service Portal;
• any Deliverables set out in an Add-on Order;
• any applicable travel expenses (such as meals, room, airline tickets, rental car, and mileage) and any other reasonably incurred out-of-pocket expenses related to all Services performed in connection with a SOW; and
• taxes (such as sales tax, excise taxes and VAT) and are payable by Customer, whether charged by TravelOperations or directly by a third party (including tax authorities)

7.3.5            All amounts payable by Customer to TravelOperations under the Agreement shall become due fourteen (14) days after the date of the invoice. Payment shall be made in full, and Customer has no right to deduction, withholding, or set-off.

7.3.6            If Customer fails to make a payment under the Agreement before its due date, TravelOperations may:

• I. claim default interest in accordance with the Danish Interest Act; and/or
• II. suspend the provision of the affected Deliverable, subject to TravelOperations providing seven (7) days prior notice.

7.3.7            TravelOperations may increase its prices annually with effect from 1 January with the greater of (i) the development in the Danish Net Price Index published by Statistics Den-mark by comparing the index for October in the past year with October the year before; or (ii) two percent (2%). If TravelOperations does not adjust its prices during a calendar year, TravelOperations retains the right to adjust its prices at a later point in time as if the prices had been adjusted each calendar year since the last price adjustment.

8.             Intellectual property rights

8.1           The Deliverables

8.1.1            TravelOperations, its Affiliates and third-party suppliers (as applicable) retains all rights and title to and interest in the Deliverables. All intellectual property rights pertaining to the Deliverables, including any modifications, developments or derivatives thereof, shall belong to and remain vested with and be the exclusive property of TravelOperations, its Affiliates and third-party suppliers (as applicable).

8.1.2            Customer may not remove or change any indications of confidentiality, copyright, brands, trade names or any other intellectual property right pertaining to the TravelOperations Software or Third-Party Software or have any such indications removed or changed.

8.1.3            Subject to Customer’s compliance with the Agreement and unless otherwise stated in Clause 2.2 or applicable Third-Party Software terms, TravelOperations grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable, perpetual license to copy, use and modify any Deliverables provided by TravelOperations solely for Customer’s internal business purposes.

8.2           Customer Data

8.2.1            Customer retains all rights and title to and interest in Customer Data, which shall be the sole property of Customer. During the term of the Agreement, Customer grants TravelOperations and its Subcontractors a limited license to host, copy, transmit and display Customer Data as necessary to provide the TravelOperations Software in accordance with the Agreement. In addition, TravelOperations and its Affiliates shall be entitled to use Customer Data in an aggregated and anonymized format to improve and provide TravelOperations and its Affiliates’ products and services. Subject to the limited licenses granted in this Clause, TravelOperations acquires no right, title or interest from Customer or its licensors under the Agreement in or to any Customer Data.

8.3           Indemnification

8.3.1            TravelOperations will defend Customer against any claim that the Deliverables infringes the intellectual property rights of a third party, and TravelOperations shall fully indemnify and hold harmless Customer from and against any losses, damages, reasonable costs and expenses, including reasonably legal fees, awarded against Customer as a result of or in connection with any such infringement claim.

8.3.2            If a third-party claims that the Deliverables infringes its Intellectual property rights, TravelOperations may take over the case, including the costs and expenses incidental thereto, and may decide whether to take the case to trial or to settle the infringement claim.

8.3.3            Customer shall promptly notify TravelOperations in writing of an infringement claim as soon as Customer becomes aware, and Customer shall (i) promptly allow TravelOperations full control of the defense and any related settlement negotiations if TravelOperations makes such a request; and (ii) collaborate with TravelOperations in the defense and any related settlement negotiations by providing TravelOperations with appropriate in-formation and any assistance required for said defense or settlement, including access to witnesses.

8.3.4            In the event of an infringement claim, TravelOperations shall be entitled to:

• I. procure Customer the right to continued use of the Deliverables;
• II. bring the infringement to an end by modifying the Deliverables or replacing the Deliverables with other software and/or services which materially complies with the terms of the Agreement; or
• III. terminate the Deliverable in question with immediate effect and reimburse Customer the Charges paid for said Deliverable for a period of six (6) months prior to the expiry date, upon which Customer shall promptly cease using the Deliverable.

8.3.5           The performance of TravelOperations’ obligations under this Section 8.3 shall comprise TravelOperations’ full liability and obligation to Customer following an infringement claim, and Customer shall have no other claim against TravelOperations as a result thereof.

8.3.6            TravelOperations’ obligations under this Section 8.3 shall not apply if Customer fails to comply with 8.3.3 above, or in case the infringement claim arises out of or in connection with:

• I. use of a superseded version of the Deliverable if the infringement would have been avoided by the use of an updated version of the Deliverable;
• II. the combination, operation or use of the Deliverable with any software, hardware or other materials not provided or approved by TravelOperations;
• III. modifications to the Deliverable performed by any other than TravelOperations or third-parties approved by TravelOperations; or
• IV. any breach of the Agreement by Customer, if the infringement would have been avoided by not breaching the Agreement.

9.             Data protection

9.1             TravelOperations’ obligations under this Section 8.3 shall not apply if Customer fails to comply with 8.3.3 above, or in case the infringement claim arises out of or in connection with:

10.             Audit

10.1       TravelOperations may at its own expense and no more than once every 12 months appoint its own personnel or an independent third party (or both) to verify that Customer’s use, installation, or deployment of the Deliverables comply with the terms of the Agreement. Customer is obliged to provide all reasonable information and assistance requested by TravelOperations.

10.2      In the event that Customer’s use of the TravelOperations Software or the Services are in breach of the Agreement, Customer shall immediately remedy such breach (including settle any underpayment identified on the basis of the TravelOperations’ then-current price list), and Customer shall pay all reasonable expenses incurred by TravelOperations relating to such audit. In addition, TravelOperations is entitled to claim additional losses and damages recoverable under applicable law.

11.             Warranties

11.1           TravelOperations Software-specific warranties

11.1.1            From the date the TravelOperations Software is accepted by Customer (as set out in Clause 4.3.3), and during the remaining term of the Agreement, TravelOperations warrants to Customer that the TravelOperations Software:

• I. will substantially operate according to the specifications stated in the Documentation;
• II. conforms with market standards for information security and TravelOperations will not decrease the level of security during the term of the Agreement;
• III. has been (and will be) tested before deploying any new versions, updates, service packs, releases or hot-fixes using software generally used in the industry for such purposes to determine that they are free from viruses and other malicious code; and
• IV. does not infringe the intellectual property rights of a third-party.

11.1.2            If the TravelOperations Software does not substantially operate according to the Documentation as set in Clause 11.1.1(i) above, TravelOperations may (at its sole discretion) within 30 days either:

• I. correct the deficiencies by patch, hot-fix, temporary work around; or
• II. reimburse Customer a proportionate part of the Charges paid for the TravelOperations Software in the period in which the TravelOperations Software did not substantially operate according to the Documentation. Without limiting Customer’s termination rights under these Master Terms, the remedies above are the sole remedies available to Customer. Provided that any bug, defect or error is non-material, TravelOperations shall be entitled to correct such bug, defect or error in the next patch or release of the TravelOperations Software.

11.2           Service specific warranties

11.2.1            Travel Operations warrants to Customer that the Services:

• I. will be delivered in a professional and workmanlike manner in accordance with industry standards using qualified personnel with the necessary skills, qualifications, and experience;
• II. in all material aspects complies with the requirements set out in the applicable SOWs at the time of delivery;
• III. do not infringe the intellectual property rights of third-parties.

11.2.2            If the Services do not comply with the requirements of the Agreement or the applicable SOW, TravelOperations shall have a right to remedy such defect(s) within thirty (30) days after receiving notice of the defect.

11.2.3            The warranty period for the Services shall be the shorter of (i) thirty (30) days from the point in time the Services are accepted by Customer (as set out in Section 4.3 above); or (ii) sixty (60) days from the actual delivery of the Services.

11.3           Limitations

11.3.1            The warranties set out in Section 11.1 and 11.2 does not apply, and TravelOperations accepts no liability, in case of failure in the Deliverables as a result of:

• I. modification to the Deliverables which has not been approved or carried out by TravelOperations (or a third-party approved by TravelOperations);
• II. any combination of the Deliverables with any third-party software or materials not supplied or approved by TravelOperations;
• III. use of the Deliverables in a manner for which it was not intended or other than as permitted by the Agreement;
• IV. failure to install a new update, service pack or release (as relevant) which has been released to remedy an error; or
• V. failures in Third-Party Software.

11.3.2            Except as expressly provided in the Agreement, the Deliverables are provided “as is”, and TravelOperations makes no other representations, warranties or statements, express or implied, statutory or otherwise regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of the Deliverables, or that the operation of the Deliverables will be secure, uninterrupted or error free. The TravelOperations Software is a standard software product, and it shall be the sole responsibility of Customer to ensure that the TravelOperations Software fulfil the requirements of Customer and is suitable for Customer’s intended purpose.

12.             Liability

12.1           Limitation of liability

12.1.1            Neither Party shall be liable for any indirect, special, incidental or consequential loss or damage that may arise in respect of the Deliverables, their use or in respect of equipment property, or for loss of profit, business revenue, data, goodwill or anticipated savings.

12.1.2            In any event, and to the greatest extent permitted by applicable law, TravelOperations total aggregated liability arising out of or in connection with the Agreement shall be limited to the Charges paid by Customer in the six (6) months preceding the occurrence of the breach for which the first claims were made. If the Agreement has not been in force six (6) months at the time of occurrence of the breach for which the first claim is made, the amount shall be deemed to include all Charges payable during the actual period lapsed, multiplied to correspond to six (6) months.

12.1.3            The limitations of liability set out in this Section 12.1 shall not apply to a Party’s infringement of third-party intellectual property rights or in case of a Party’s gross negligence or willful misconduct.

12.2           Insurance

12.2.1            Each of the Parties shall, at its own expense and during the term of the Agreement, maintain adequate insurances in the amount and terms reasonably necessary to cover its liabilities arising from the Agreement.

13.             Term and termination

13.1           Term of the Agreement and termination for convenience

13.1.1            The Agreement enters into force on the Effective Date and shall remain in effect as long as Customer has a valid subscription to the TravelOperations Software, as set out below.

13.1.2            Under the Yearly Payment Plan, the initial term of Customer’s subscription to the TravelOperations Software is one (1) year from the Subscription Commencement Date specified in the Order Form (the “Initial Term”). Upon expiration of the Initial Term, Customer’s subscription will continue to automatically renew for successive one (1) year renewal terms (each a “Renewal Term”) unless either Party provides the other Party a notice not to renew at least 30 days before the expiration of the Initial or Renewal Term, as the case may be.

13.1.2            Under the Monthly Payment Plan, The Customer’s subscription for TravelOperations Software under the Monthly Payment Plan shall commence on the Subscription Commencement Date. Each Party shall be entitled to terminate Customer’s subscription of the TravelOperations Software set out in the Order Form for convenience by providing 30 days’ notice to the end of a calendar month.

13.2           Termination for breach

13.2.1            A Party may terminate the Agreement in whole or in part by providing a notice of termination to the other Party if:

• I. the other Party commits a material breach of the Agreement and the Party in question has failed to remedy that breach within thirty (30) days following receipt of a notice of termination specifying the breach; or
• II. the other Party commits a material breach of the Agreement, which is not capable of remedy.

13.2.1            Any failure by Customer to pay outstanding invoices shall always be considered a material breach by Customer, provided that TravelOperations has sent one reminder granting a period of at least thirty (30) days to settle the outstanding invoice.

13.2.1            If TravelOperations is in breach of a SOW, the breach shall solely apply in relation to such SOW, unless the breach affects Customer’s use of the TravelOperations Software as a whole.

13.3           Obligations upon termination or expiration

13.3.1            Upon the termination or expiry of the Agreement (for whatever reason), Customer shall promptly cease using the Deliverables and shall promptly return or delete/destroy the Deliverables and TravelOperations’ Confidential Information, including any copies thereof, unless otherwise stipulated in mandatory statutory legislation, and where Customer is required to comply with such legislation in all respects.

13.2.2            Upon the termination or expiry of the Agreement (for whatever reason), TravelOperations shall:

• I. return to Customer all copies of Customer’s Confidential Information, Customer Data and all other property of Customer in the possession or control of TravelOperations that relate to the Agreement; and
• II. loyally assists with the extraction and transfer of Customer Data to Customer or another services provider appointed by Customer.

13.3.3            The termination assistance services provided by Travel Operations Clause 13.3.2 shall be rendered by TravelOperations on a time and material basis in accordance with TravelOperations’ applicable hourly rates.

14.             Force majeure

14.1       Either Party is entitled to suspend the performance of its obligations without incurring liability under the Agreement if and to the extent that such performance is impossible due to extraordinary circumstances beyond the reasonable control of such Party. The Party claiming to be affected by such circumstances shall, without undue delay, notify the other Party of the intervention and of the cessation of such circumstance.

14.2     Notwithstanding Clause 13 above, either Party is entitled to terminate the Agreement with immediate effect by notice to the other Party if it is clear from the circumstances that the performance of the Agreement will be and is suspended under this Clause 14.1 for more than 30 days.

15.             Confidentiality

15.1        The Parties shall not, apart from what is required by applicable law, a court or an authority of competent jurisdiction, make use of, except for the purposes contemplated by this Agreement, disclose to any third party or publish any Confidential Information received by one Party from or in respect of the other Party under or in connection with the Agreement. The receiving Party shall use the same care and discretion to avoid disclosure, publication or dissemination of the disclosing Party’s Confidential Information as the receiving Party uses with its own Confidential Information, which shall be no less than reasonable and the receiving Party shall ensure that its personnel and agents observe this clause.

15.2        For the purpose of this Agreement, “Confidential Information” means a Party’s trade secrets as well as other commercial and operational information disclosed to the relevant Party by or on behalf of the other Party (whether before or after the date of this Agreement) which is marked as or has been otherwise indicated to be confidential or which de-rives value to a Party from being confidential or which would be regarded as confidential by a reasonable businessperson. However, Confidential Information specifically excludes information which (i) is in or comes into the public domain without breach of Clause 15.1 by the receiving Party; (ii) was in the possession of the receiving Party prior to receipt from the disclosing Party and was not acquired by the receiving Party from the disclosing Party under an obligation of confidentiality; (iii) has been acquired by the receiving Party from a third party who is not under an obligation of confidentiality in relation to the disclosing Party; or (iv) has been independently developed by the receiving Party without the use of any Confidential Information of the disclosing Party.

15.3      The provisions of this Clause 15 applies during the term of the Agreement and for a period of five (5) years upon expiry or termination of the Agreement.

16.             Miscellaneous

16.1      The Agreement sets forth the entire agreement between the Parties on this subject and supersedes all prior negotiations, understandings and agreements between the Parties concerning the subject matter. Subject to Section 5 above, any changes to the Agreement are to be made by written amendment to the Agreement duly signed by both Parties.

16.2      The failure of a Party to exercise any right or remedy to which it is entitled will not constitute a waiver of such right or remedy under the Agreement. Any waiver of a right or remedy by a Party must be set out explicitly in writing and notified to the other Party.

16.3      TravelOperations may publicly name Customer as a client for reference purposes in its marketing efforts and Customer grants to TravelOperations, strictly for the purpose thereof, a perpetual license to use Customer’s tradenames and logos. Customer may at any time revoke TravelOperations’ right to use Customer as a reference as set out in this Clause.

16.4      TravelOperations shall be entitled to assign its rights and obligations under the Agreement to a third-party without the prior consent of Customer. Customer is not entitled to assign its rights and obligations to a third-party without the prior written consent of TravelOperations.

16.5      Any communication or notice to be made under this Agreement shall be provided in writing. Notices may be sent by email using the contact information provided in the Order Form or as given from time to time in case such contact information changes.

17.             Governing law and dispute resolution

17.1      The validity, interpretation, and performance of the Agreement shall be governed by the laws of Denmark disregarding any choice of law principles and excluding the Contracts for the International Sale of Goods (CSIG).

17.2      Any dispute arising out of or in connection with this Agreement, including any dispute regarding the existence, validity or termination thereof, is to be settled by simplified arbitration arranged by the Danish Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by the Danish Institute of Arbitration and in force at the time when such proceedings commence. The place of arbitration is Copenhagen, Denmark, and the arbitration proceedings, the subject thereof and the arbitration award shall be confidential. The language of the arbitration proceedings (both in relation to documents and oral proceedings) is English, however, any documentary evidence may be submitted in Danish if that is the original language of the document.